Police Liability and Litigation

4 key ways a cop can win on the stand

Incredibly brave men and women who have fought with felons, braved gunfire, and remained calm in the face of emergencies are often uncomfortable and incapable when it comes to testifying in court

Testifying in court is an event that often causes the strongest cop in the room to go weak in the knees. The anticipation of direct examination, the often easy, partially-scripted part of an officer’s testimony can be consumed with mental reviews of the testimony and last-minute glances at notes. Usually, once the officer is on the stand and a few peremptory questions are out of the way, he or she settles in, becoming less rigid on the witness stand — more confident with each response.

Once direct examination ends however, the baton is passed, and the questioner is no longer the amiable prosecutor but now the adversarial defense attorney. Sometimes, the initial tete-a-tete with defense counsel may come sooner — upon Voir dire of the officer’s qualifications or over an item of evidence the prosecution seeks to introduce, for example.

Experience is a Good, Sometimes Cruel, Teacher
Whenever this first confrontation occurs, the comfort level originally obtained immediately vanishes, the demeanor on the stand becomes surly and aggressive with defense counsel — this is often the first trap set by the defense attorney for the police officer to be caught in while on the stand. And often, once the defense attorney has the officer on the defensive, the battle is won. What better way to display to a jury that the respectful police professional they observed on direct can suddenly become a brooding defensive bully on cross.

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As someone who has been on both sides of the stand I know the tactics well. In my days as a police officer and detective I testified at numerous trials, some where the stakes were high for the defendant, such as life imprisonment. As an attorney I’ve represented police officers in disciplinary trials and observed at least one defense case waste away with a less-than-forthright and combative officer going toe-to-toe with my adversary. I’ve also cross-examined witnesses and been able to lead them where I wanted them to go — they’re often unaware of the trap until it is too late.

There is a rhythm to a trial and court proceedings and once an officer learns to get comfortable with that rhythm, the more natural it will be to testify. Incredibly brave men and women who have fought with felons, braved gunfire, and remained calm in the face of emergencies are often tentative when it comes to testifying in court.

It is, indeed, a strange dynamic.

I have to admit I did reach a point in my police career where I enjoyed being on the stand testifying. I began to see the courtroom as theater — the bench and the witness stand the stage.

This is not a farfetched view — many trial attorneys have the same view. Any doubt that the courtroom is theater is easily dispelled when you consider the number of television shows and movies whose high point is the trial scene. Or more pointedly, by looking in on any municipal courtroom and checking the regulars, usually retirees, who come in to watch trials and then sit over lunch or afternoon coffee with their cronies discussing the day’s events, the lawyers, and witnesses.

Over the years there were a few practices I developed which came from observing other, more experienced officers during my career and by becoming a student of lawyers in the courtroom analyzing their methods on cross-examination. If there is one mistake that police officers make when testifying — especially those early in their career with little experience on the stand — it is sounding like an automaton on the witness stand.

On Being Human...
While the Paramilitarism part of policing is fine around superiors or out on the street, it can be relaxed in the courtroom. Of course, the “Yes sir,” “No ma’im” niceties which are a sign of respect and discipline are still to be expected, the officer can show his/her human side. They are still moms and dads, brothers and sisters, aunts and uncles, and part of the community fabric. A jury needs to see that and be able to identify with the officer’s own humanity. Many officers make the mistake of building a wall between themselves and the jury during their testimony by speaking in a jargon unfamiliar to the jurors. The officers invoke a strange tone and phraseology, such as “I exited the vehicle,” when describing rather mundane tasks.

“Who says that?” was the reaction of a defense attorney acquaintance of mine when we recently discussed police testimony. After cross-examining many police officers in her career she was astounded at the universal police line when describing something as simple as existing a car. I would be simpler and sound more real to a juror for that officer to say, “I got out of my car.”

Such jargon begins building the wall that defense counsel hopes to place between the officer from the jury — it disconnects them. While testifying is first and foremost about speaking the truth, it is also about connecting with the jury (or the judge if that is your sole arbiter). Why is this connection so important? Because your credibility is on the line the minute you are placed on the stand. Make no mistake about this: the chief aim of any defense attorney is to attack the witness’ credibility. This may be a matter of questioning recollection, disputing facts, or an all-out assault on the witness’ veracity. No matter what form the attack may take, the officer witness needs to be prepared to counter the attack.

The truth is a powerful weapon but sometimes even the truth is not enough. That defendant’s attorney will take every opportunity to make you seem untrustworthy, shady, or corrupt. If counsel believes they can manipulate that image of the officer testifying, there is an image that experienced defense counsel will try to portray of the officer. Officers experienced in testifying will often subtly control the direction of their cross-examination by the way in which they handle themselves on the stand. A good defense attorney will know which officers to push and which to let go and get off the stand as quick as possible.

Simple Rules for Testifying
So what are the tricks, gimmicks, magic incantations for testifying? Really there are none—every officer is different and has unique personality traits and interpersonal skills. Officers should consider what their strengths of personality are, and seek to maximize those strengths when testifying. Remember: the defense attorney is there to make you look unprofessional, biased, unreliable, and not believable. Armed with the truth, you have nothing to fear but you also have to be sure that the truth you have to tell does not get lost in the shuffle of the courtroom theater. With all that said, there are a few tried and true elements of testifying that — when mixed with your natural personality traits — should help you leave the witness stand feeling confident you did a good job.

1.) Preparation, Preparation, Preparation
There is nothing more embarrassing than being caught unprepared. Know your case and the matters on which you will be testifying. If you gave testimony in previous grand jury or suppression hearings, be thoroughly familiar with what you said in those prior proceedings. I once witnessed an encounter during a suppression hearing when an arresting officer in a narcotics investigation had to leave the witness stand to go to his car to retrieve notes in order to answer defense counsel’s question regarding a perfunctory aspect of the investigation. This occurred early in the cross examination and caught the defense attorney by surprise since he had not counted on being able to start dismantling the officer’s credibility so early in the process. What ensued was further embarrassment for the unprepared officer who was evasive, forgetful, and plainly careless in testifying to key aspects of the investigation.

The end result was an incarcerated, accused drug felon walking out of court free without bail and severe damage to the prosecutor’s case against the defendant.

2.) Avoid “Cop-speak”
Every profession has its own vernacular, but when speaking to those outside the profession that vernacular should be converted to normal, conversational language. When I go to our favorite Italian restaurant with my wife and she asks me how my meal is I don’t reply, “It is so good it is ‘res ipsa loquitor’.” Any lawyer knows the short term variant of ‘res ipsa’ means “the thing speaks for itself” but would I describe my meal in this way to my wife? Hardly not!

How’s my meal? “So good it goes without saying.”

Police officers fall into this trap as outlined above with the phrase, “I exited my vehicle.” Officers may refer to defendants on trial as “the perp,” “the defendant,” “the accused.” Every one of which is all wrong (however true each may be!). When I was a cop I always referred to the defendant as “Mr. ____,” or in responding to defense counsel, “your client.” As in, “No sir, it was clearly your client I saw leaving the store with a gun in his hand.” Officers should testify to using “the phone” not “the landline,” to “seeing” rather than “observing,” to “speaking with” rather than “interviewing.” The subtleties of language and how it is used has a powerful effect on people and should be used to the maximum advantage of the officer testifying.

3.) Don’t Get Defensive with Defense Counsel
I’ve got no problem with defense attorneys — I’ve enjoyed sending their clients to prison. However, no matter what the outcome I never took anything personally. Defense counsels have a job to do and many do it quite well. They are a necessary ingredient to our system and ensure fairness in the process. Of course, we all know in our experiences a few who just hate the police and reserve their particular brand of venom for the police witness. Here is where the officer should be his/her most charming, friendly self — firm in their testimony but polite, respectful, and a counter-balance to the vitriol of the defense attorney. Jurors will see through the defense counsel for what they are trying to do.

I have often seen officers finish direct examination very composed, agreeable, and confident only to transform once the cross-examination begins. An open relaxed position on the witness stand shrinks to a closed protective defensive position. Voice tone and inflection in responding to defense counsel changes; it is more sharp and curt. The officer witness is now someone different that what the jury had just observed and the seed is planted as to whether there is another side to this officer as they defense attorney suggests. Many times it is not so much the skill of the cross-examiner as the poor reaction of the officer on cross-examination that creates the doubt in the jurors’ minds. Don’t allow yourself to get caught in the defense attorney’s trap of letting you become hostile and antagonistic to his client which he will be portray as your being hostile and antagonistic to the truth.

4.) Converse with the Jury
As previously mentioned, defense attorneys like to draw the officer witness into their web, engage the officer witness a back-and-forth conversation that has you forgetting about the jury and concentrating on them. Once drawn in, you may lose your reserve and succumb to the subtlety of the cross-examination — verbally sparring with defense counsel, acting defensive and surly. You always need to remember who you are testifying for, the jury who are the ultimate deciders of fact. Defense counsel can ask you the question but your answer, which is testimonial evidence, will be considered by the jury. When testifying take time to look at the jury, make eye contact with the jurors and engage them in your dialogue with not only defense counsel but the prosecutor. This is a good way to connect with a jury but it is also likely to infuriate a defense attorney.

Once when testifying, I had a defense attorney during cross-examination stop and ask the judge for a side-bar. During the side-bar he asked the judge to instruct me to stop looking at the jury during my answers. The judge rightfully replied that he could not do so. I had a right to address my answers as I pleased. Upon the rejection, the attorney went back to the defense table and proceeded to point out that he noticed each time I answered I turned to the jury when replying. He then asked me if this was a tactic I was taught in the police academy. I gave the question a moment’s thought then turned to the jury while alternately looking at defense counsel and replied, “No, I was taught by my parents that it is respectful when addressing others to look at them.”

The attorney did not bargain for that answer and his questioning of me ended shortly after. As I sat there on the stand waiting for his next question I could sense the collective sighs of satisfaction the jurors got from that response. Jurors generally know when they are being lied to by witnesses, and when they are being duped by attorneys. Once they arrive at this conclusion they are lost forever in a trial. It is nearly impossible to rehabilitate a lying witness, or for an attorney to regain lost trust with a jury. Keeping the jury engaged in your testimony and liking you as a witness should be a primary goal.

The above are by no means exclusive or comprehensive. They are merely reflections on what I have found, on both sides of the witness stand, to be useful for officers when in the courtroom. Nothing is more useful for young officers with little experience testifying than to go to court when a more experience officer is testifying and watch. I credit many more experienced, wiser officers during my career with being models upon which I was able to develop my own comfort zone when testifying. The arrest is only the beginning in the long process in getting the bad guys off the street. A conviction after trial is like a sundae with a cherry on top.

About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.